ABC’s new drama, Designated Survivor, brings to the forefront a person who is almost never discussed, and a constitutional issue that often flies under the radar.

The pilot begins with Kiefer Sutherland as the Secretary of Housing and Urban Development, who is quickly thrust into the office of the presidency after an explosion on Capitol Hill during the State of the Union address kills most of the top officers of the United States.

How was Sutherland’s character, Tom Kirkman, picked as the “designated survivor”? For the most part, the person is selected at random by the President’s chief of staff. The only qualifications are that you be a cabinet member and constitutionally eligible for the presidency under Article II: a natural-born U.S. citizen, 35 years or older, with at least 14 years of residency in the United States.

In the not-too-distant past, the person chosen would go on a “mini-vacation” of sorts. President Bill Clinton’s former Secretary of Energy Bill Richardson, for example, went to a Maryland beach town and enjoyed roast beef and beer during the speech. President Ronald Reagan’s former Secretary of Agriculture John Block actually watched the 1986 speech from Jamaica. But in recent years, the designated survivor has been kept in close proximity to Washington in an undisclosed location. This has been the case since 9/11. The location is said to have several of the same amenities, including a briefing room, security staff and some of the things related to the US nuclear arsenal, although not necessarily the nuclear football itself.

Why is it that a cabinet member is picked? It’s due to the presidential line of succession. The current line, established by the Presidential Succession Act of 1947, goes as follows: Vice President, Speaker of the House, President Pro Tempore of the Senate, and the cabinet members, in order of when their departments were established.

The line of succession has changed several times in U.S. history. The framers of the Constitution in Philadelphia decided not to address the issue, leaving it to Congress instead. The first succession act was passed in 1792, and it established a slightly different order: President Pro Tempore of the Senate, Speaker of the House, Secretary of State, Secretary of Treasury and Secretary of War (now Defense).

The line of succession was later changed after the impeachment proceedings of President Andrew Johnson. Johnson was without a vice president, leaving President Pro Tempore Ben Wade next in line. He was a major voice during the proceedings in the Senate, and did not excuse himself from voting on the matter, thereby essentially casting a vote for himself to be President. It was even rumored that he had picked out his cabinet before the vote. Seeing this as a conflict of interest, the Presidential Succession Act of 1886 removed the President Pro Tempore and Speaker of the House from the line of succession. As a result, only cabinet members were in line for the presidency, eliminating dangerous conflicts of interest—motivation to assassinate the President, for instance—and allowing the President’s administration to continue under his hand-picked successors.

The 1886 line lasted until the mid-twentieth century, at which time the current line described above was established. Leaders believed it was important that elected officials, and not just executive appointees, be eligible to ascend to the presidency. Some critics have argued that President Harry Truman approved the change in part because of his close friendship with then-Speaker of the House Sam Rayburn, although that has never been proven.

While the line of succession has never been activated beyond the Vice President, the 25th Amendment—which, among other things, allows the President to appoint a Vice President if the office becomes vacant—was used twice to keep those offices filled. When Vice President Spiro Agnew and President Richard Nixon himself resigned, Congress had to go through confirmation hearings for Gerald Ford and Nelson Rockefeller, respectively. The Speaker of the House on both occasions, Carl Albert, could have dragged his feet and delayed proceedings in an effort to gain the office of President for himself. That never came to fruition, but one could argue that the House did not make an effort to speed up the process.

The most recent activation of the 25th Amendment—which also allows the President to temporarily hand off his powers to the Vice President—happened during the George W. Bush administration. President Bush had to go into surgery, and during that time, Vice President Dick Cheney was the Acting President. Cheney then went back to the vice presidency when Bush returned to the White House.

Tonight, when Tom Hickman rises from low-level cabinet member to President of the United States, presidential succession—and the constitutional issues it raises—may once again capture the attention of Americans nationwide.

Christopher Calabrese is an intern at the National Constitution Center. He is also a recent graduate of Saint Joseph’s University.

Among the most important Supreme Court cases about the separation of powers is Youngstown Sheet & Tube Co. v. Sawyer. The decision was a slap in the face to a wartime president. More important, the famous concurring opinion penned by Justice Robert Jackson offered a durable framework for analyzing disputes between the executive and legislative branches. But a recent essay from Professor Laurence Tribe of Harvard Law School—a past speaker at the National Constitution Center—suggests that Jackson didn’t get it quite right.

In 1950, the United States entered the Korean War. At the time, President Harry Truman was concerned with the output of the nation’s steel mills, as he believed that a strike would cause severe problems for the war effort and the country’s economy.

However, the president’s efforts to avoid labor issues did not succeed. The United Steelworkers of America sought a new contract that would increase wages for its members; the Wage Stabilization Board attempted to have the workers and the industry agree on a compromise. Failing to do so, the union announced that a strike was on, and the steel companies began to shut down their mills.

President Truman decided that he needed to force the mills to stay open. In his executive order on April 8, 1952—now on display at the Center—Truman warns that “American fighting men and fighting men of the United Nations are now engaged in deadly combat with the forces of aggression in Korea,” and that a work stoppage “would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.”

Within an hour of the announcement, attorneys for the steel industry sought a temporary restraining order to keep the president from carrying out the order. The case was appealed to the Supreme Court, where five hours of oral argument focused on whether the inherent powers of the presidency under Article II authorized the seizure of private property.

On June 2, 1952, the Court ruled 6-3 against Truman, with the strident textualist Justice Hugo Black authoring the majority opinion. However, the other five Justices in the majority wrote concurring opinions—including Justice Jackson, whose tripartite framework has endured as a guide for adjudicating disputes between the President and Congress.

“The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context,” writes Jackson. “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. … Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.”

So it was that the “Youngstown triptych” was born. In Jackson’s articulation, the president’s power is “at its maximum” when he or she acts “pursuant to an express or implied authorization of Congress,” “at its lowest ebb” when he or she acts against “the expressed or implied will of Congress,” and in a “zone of twilight” when he or she acts “in absence of either a congressional grant or denial of authority.”

Though elegant, Jackson’s concurrence provides little guidance for judges to determine when the President has erred in the face of congressional silence. “In this area,” Jackson notes, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.”

Into this ambiguity steps Professor Tribe. In a July piece for The Yale Law Journal Forum, Tribe not only highlights the difficulty of ascertaining Congress’s “will,” but also suggests that Jackson’s two-dimensional analysis fails to take into account other important constitutional principles.

“The truth is that Youngstown offers no meaningful baseline against which to assess the operative legal significance of Congress’s silence,” Tribe writes. “[R]eferences to the undefined ‘will of Congress’ leave the field wide open for unguided imputations to Congress of an inchoate set of floating intentions and purposes—and for giving those imputed intentions operative legal consequences.” Vaguely related statutes, joint resolutions, and other congressional actions can be cited as approval or rejection of executive actions, with no clear standard for judging either way. Indeed, as a result, courts may be running roughshod over the lawmaking process outlined in Article I, Section 7.

So when a case falls within the “zone of twilight,” what other factors should the Court consider in making its decision?

First, Tribe defends executive enforcement discretion, citing the ongoing debate over President Barack Obama’s executive actions on immigration. “Congress’s instructions … frequently bear little relation to the facts on the ground and may indeed be internally inconsistent,” he notes. In the case of immigration, Tribe explains, deporting the approximately 11 million immigrants living the U.S. illegally would require more money than Congress allocated for the task, as well as policing mechanisms that could raise liberty concerns. President Obama’s deferred deportation programs, then, are a permissible way of dealing with this inconsistency.

Both leading presidentialcandidates have suggested that executive power will be an important tool in the next administration. We can be confident, then, that the separation of powers will remain a potent issue in our constitutional debates for years to come. Perhaps Professor Tribe’s analysis can help a future Court sort it all out.

]]>http://blog.constitutioncenter.org/2016/08/does-the-separation-of-powers-need-a-rewrite/feed/0Constitution Check: Is the transgender rights case a big test for the bureaucracy?http://blog.constitutioncenter.org/2016/06/constitution-check-is-the-transgender-rights-case-a-big-test-for-the-bureaucracy/
http://blog.constitutioncenter.org/2016/06/constitution-check-is-the-transgender-rights-case-a-big-test-for-the-bureaucracy/#respondFri, 10 Jun 2016 14:25:31 +0000http://blog.constitutioncenter.org/?p=43365Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how a new case involving a transgender student is shaping up as a significant test of judicial deference to bureaucratic views.

THE STATEMENTS AT ISSUE:

“The Education Department and the Justice Department created an ambiguity [in the scope of Title IX] where one never existed and replaced the term ‘sex’ with ‘gender identity.’ The implications are endless if Executive Branch agencies are permitted to rewrite statutes and regulations whenever they are able to manufacture an ambiguity no matter how novel it may be. Principles of federalism and separation of powers are at stake, and time is of the offense.”

– Excerpt from a filing in federal appeals court on June 7 by the Gloucester County (Va.) School Board, announcing its plan to appeal to the Supreme Court to test whether Title IX of federal civil rights laws protects transgender people against discrimination based upon their “gender identity.” The case will be filed at the Supreme Court by August, the board said.

WE CHECKED THE CONSTITUTION, AND…

With the vast growth of federal regulatory agencies, in the 1930s and 1940s, the idea spread that technical expertise was a good thing to have in government, and that it would be a hallmark of a professional bureaucracy, a “technocracy.” Courts apparently shared that view, and developed the idea that they should be generous in accepting what those agencies had to say about enforcing federal administrative law. That might be called the “doctrine of deference,” because it generally meant that judges would not second-guess too greatly what the agencies did in interpreting their own regulations.

The doctrine probably got its start in a case that grew out of controversy over price controls that the federal government had imposed in an attempt to hold down inflation during World War II. It began, it seems, with the Supreme Court’s 1945 decision in the case of Bowles v. Seminole Rock & Sand Co., involving price controls on crushed stone.

In that ruling, the Justices said the agencies themselves should have the primary opportunity to spell out what their own regulations mean, if those regulations are ambiguous. Here is what the opinion said: “The ultimate criterion [of what a regulation means] is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”

The court has followed that approach repeatedly, and did so most notably in a 1996 decision in the case of Auer v. Robbins. That decision came in the case of Labor Department interpretations of its own regulations dealing with overtime pay for public employees – in that case, police sergeants and lieutenants, who had some supervisory responsibilities. That ruling has grown in importance so much that the doctrine of deference to federal agency interpretations of their own rules now gets its name from that case: “Auer deference.”

The whole idea that judges should be strongly deferential to regulatory agencies, though, has been gaining critics for years, particularly with the intensification of business challenges to pervasive regulation of their day-to-day operations by the Washington bureaucracy. That resentment has also been encouraged by “smaller government” advocates, like Tea Party elements.

But the doctrine also has developed critics within the judiciary, on the premise that it undercuts the obligation of judges to interpret what federal laws are to mean, and how they are to be enforced, and thus intrudes on Article III’s allocation of power to the judiciary. Judges also have argued that agencies can unfairly surprise those that they regulate by switching their interpretations without consulting anyone.

“Auer deference” has been challenged most conspicuously by the Justice who wrote that decision in 1996: the late Antonin Scalia. Last year, Scalia argued simply that the concept should be abandoned. Three other Justices have joined in questioning it; Justice Clarence Thomas, one of those three, did so as recently as last month when the issue of the doctrine’s continued validity came up anew.

A new case that is on its way to the Supreme Court is shaping up as another, perhaps quite significant test of judicial deference to bureaucratic views. That is the case of a 16-year-old transgender student in a high school in Virginia, who sued when he was denied access to the boys’ restroom (the youth was identified as a girl at birth but identifies as a boy). The school board in Gloucester County is preparing to appeal to the Supreme Court to challenge a federal appeals court ruling that explicitly invoked “Auer deference” in reviewing the meaning of the federal civil rights law that outlaws discrimination “based on sex” – Title IX, enacted in 1972.

The U.S. Court of Appeals for the Fourth Circuit concluded in the Gloucester County case that it had a duty to accept the interpretation of the federal Education Department that the phrase “based on sex” in Title IX reaches discrimination based on “gender identity” and that the protection extends to restroom access.

In announcing its plans to appeal to the Supreme Court, the school board said explicitly that it would challenge the Circuit Court’s deference to federal education officials. It noted the criticism of the doctrine by members of the Court, and warned that continued adherence to the doctrine would mean violations of federalism – that is, the right of state and local government to manage education themselves – and separation of powers. The school board is contending that education officials invented themselves the idea that the word “sex” was not limited to biological sense, and then went further and invented the idea that it applies to transgender discrimination based on “gender identity.”

The planned appeal, the school board added, will also argue that the bureaucracy’s interpretation of Title IX poses a major threat to “the dignity and freedom of bodily privacy.”

If the Supreme Court takes on the case, it would appear that there is no way the Justices could decide the controversy without first saying whether the broader interpretation of Title IX was the kind of public policy view to which the courts did owe “Auer deference.” It would take the votes of only four Justices to grant review of the case, and of that issue. It is already apparent that there are Justices who will be arguing for that review.

President Barack Obama listens during one in a series of meetings discussing the mission against Osama bin Laden, in the Situation Room of the White House, May 1, 2011. (Official White House Photo by Pete Souza)

Editor’s Note: This commentary is part of a series presented in conjunction with the Center’s feature exhibition, Headed to the White House.

The written Constitution is full of seemingly clear pronouncements about the distribution of foreign affairs powers. To pick a few prominent ones: Congress has the power to declare war and to regulate commerce with foreign nations. The President is the commander-in-chief and is responsible for making treaties by and with the advice and consent of two-thirds of the Senate.

Yet, in practice, these words operate like large brush strokes in an impressionist painting. As early as 1793, Alexander Hamilton and James Madison were debating whether the Constitution gave President George Washington the power to declare the United States neutral in the conflict between Great Britain and France. (President Washington decided that it did.) This is only one of countless examples of “the gloss which life has written upon” the words of the Constitution. While these words continue to matter, they have been strongly supplemented by the practice of our government over the years.

Also like an impressionist painting, the picture is plain from a distance. Historical practice has given the President the “lion’s share” of foreign affairs power. The President determines U.S. foreign policy in the first instance; has the exclusive authority to recognize foreign nations; can use force abroad without congressional authorization in at least some circumstances; and can make important international commitments under his or her own authority. In addition to all these independent powers, the President also wields considerable powers delegated by pre-existing statutes (such as the power to suspend sanctions against Iran, which President Barack Obama recently used).

The Presidency’s vast foreign policy powers are a good thing—if you think the President will use them well. U.S. foreign policy requires expertise, deftness, flexibility, speed, and sometimes secrecy, traits that do not match well with Congress as an institution. But what about the risk that the President will make terrible decisions or will blatantly ignore the remaining limits on his or her foreign affairs powers? With just a few months before the 2016 election, it is worth reflecting on what checks our system has in place to reduce this risk.

We are in the midst of the first great check: the election process. The election season enables Americans to choose the next leader of our foreign policy through a transparent and mostly democratic process. If exercised well, this check should screen out those who are unfit for office.

The choice in this election is stark. It is between expertise and theater; between progress-as-usual and unpredictability; between international engagement and racist nativism.

Hillary Clinton is predictable. Her approach to foreign affairs will show strong continuity with President Obama’s, with some perhaps some differences in trade policy. She will probably follow in his footsteps in taking robust but plausible positions on the scope of presidential power on issues like climate change and security. There will be controversies, but contained ones, and a heavy reliance on experienced diplomats and policy experts.

Donald Trump is … Donald Trump. In his own estimation, he will doubtless be the greatest foreign policy President ever. In the eyes of many members of the foreign policy establishment, he will be a disaster. He has deeply unsettling policy proposals and an undeniable preference for grandiosity over deliberative decision-making. As Benjamin Wittes wrote this spring on Lawfare, “Never before in my lifetime has either political party been led by a man with such an unusual combination of—from a national security perspective, anyway—terrifying liabilities.”

Once the next President takes office, a different set of checks will constrain his or her actions (with public opinion also continuing to play an important, underlying role). Some checks will come from our constitutional order—from Congress and from the federal courts. Under conditions of strong bipartisan agreement, Congress can pass legislation over the President’s veto (as occurred with the War Powers Resolution of 1973), and Congress does ultimately have the power of impeachment. The federal courts tend to be wary of intervening in foreign affairs issues, but on occasion they have issued strong rebukes to perceived presidential overreaching.

As checks, Congress and the courts do not operate in real time. They respond after-the-fact and typically only following dramatic provocation. Fortunately, there are other checks on Presidential power—checks that stem not from the Constitution but from the process of governance. Individual members of Congress and congressional committees have soft investigative powers that they can deploy more swiftly. More significantly still, members of the military and of the civil service have numerous tools for shaping and resisting presidential decision-making, especially where it is in tension with the rule of law. In the last resort, they can refuse to follow unlawful orders or resign.

Finally, the international political and legal order poses its own set of constraints. Practically speaking, the United States conducts its international business in large part through a dense web of international treaties and institutions. The ground rules of these institutions cannot be changed unilaterally by the United States, and attempts to operate outside them would likely give rise to significant resistance from allies whose cooperation is important to other U.S. foreign policy interests.

Overall, these post-election checks on the foreign affairs powers of the President are diffuse but collectively robust. Together they significantly reduce the risk of extreme presidential abuses of power. But even when they work, they still leave the President with considerable discretion, and there remains a risk that they will fail to prevent one or more catastrophic decisions. The most important safeguard remains the election itself.

In Federalist No. 68, Alexander Hamilton expressed the expectation that, while “[t]alents for low intrigue, and the little arts of popularity, may alone suffice to elevate” a person to certain honors, “it will require other talents, and a different kind of merit, to establish [that person] in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make [that person] a successful candidate for the distinguished office of President of the United States.” Let us hope that this prediction holds.

Jean Galbraith is an assistant professor of law at the University of Pennsylvania Law School.

Editor’s Note: Commentaries appearing on Constitution Daily reflect the opinions of their authors, and not those of the National Constitution Center.

]]>http://blog.constitutioncenter.org/2016/06/the-next-president-and-foreign-affairs/feed/0Constitution Check: Do state legislatures have the power to shut down state courts?http://blog.constitutioncenter.org/2015/09/constitution-check-do-state-legislatures-have-the-power-to-shut-down-state-courts/
http://blog.constitutioncenter.org/2015/09/constitution-check-do-state-legislatures-have-the-power-to-shut-down-state-courts/#respondThu, 17 Sep 2015 11:07:07 +0000http://blog.constitutioncenter.org/?p=40110Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, examines the rising pressure that state legislatures are putting on state courts through budget restrictions and other measures.

THE STATEMENT AT ISSUE:

“In multiple states, 2015 already has become a banner year for court-bashing by elected politicians. Are state legislatures breaking all records for attempts to rig our courts? The results are still coming in, yet it appears to be a banner year for elected politicians trying both new and well-established ways to bully, politicize or pack impartial courts. What’s alarming is that they are succeeding. … [In Kansas,] an axe is hanging over funding of the entire state court system because elected officials chose to make political pawns of state courts.”

– Excerpt from a commentary in the press on September 8 by Liz Seaton, interim executive director of Justice at Stake, an advocacy organization that seeks to protect the independence of state courts across the nation.

WE CHECKED THE CONSTITUTION, AND…

When a new national government was being framed for America in the late 18th Century, the architects of the Constitution were determined to have a balanced government—one in which government authority was divided, to prevent the kind of concentration of power that was typical of the much-resented English monarchy. Liberty would be protected, the founding generation’s leaders believed, if a system of “checks and balances” could emerge from a division, or separation, of governing authority.

A balanced government, James Madison argued, was necessary to preserve a republican form of government—that is, a government in which ultimate power resided with the people themselves, acting through representatives who would be entrusted to run the government day to day in the interests of all of the people.

Madison and his peers believed that this balance was not only a good thing for the new national government, but also for the state governments that already existed and would continue in the new governing order. In fact, the founders wrote into the Constitution’s Article IV a promise that the new national government would “guarantee to every state in this Union a republican form of government.”

It has never been very clear just what was intended by this promise, and how it would be enforced. The Supreme Court over the ensuing decades would pay little attention to it, except to make it clear that fulfilling the promise would have to be left to the political branches, not to the courts.

Even so, that guarantee remains in the Constitution, and represents an abiding aspiration that state governments should not stray from the republican ideal, or from the basic commitment to balanced government—the separation of powers—that is believed to be so essential to maintaining that ideal.

That aspiration is being challenged these days, however, by the actions of a growing number of state legislatures to rein in what some lawmakers apparently believe are courts that exercise too much power and are too resistant to what legislators want from them.

A quite extreme example of that type of challenge has been unfolding in the state of Kansas over the past year or so. The state’s legislature decided that it wanted to take away from the state’s Supreme Court the power to pick chief judges to lead each of the judicial districts for the lower state courts. Instead, the legislature ordered that this selection be done by the lower court judges themselves.

But, sensing that the state courts might strike down that measure as a form of legislative interference in judicial functions, the legislature followed up with a second measure, the bill to provide funding for all of the state courts for a two-year period. That legislation provided that, if the courts were to rule that the rearrangement of the judicial selection power violated the state constitution, all of that funding for the courts would be “null and void.”

State judges immediately saw the challenge to the state Supreme Court’s authority as a violation of separation-of-powers doctrine, and so one of them sued in state court. In a ruling in early September, a trial judge agreed that the stripping of the power of the state Supreme Court was a violation of the separation-of-powers doctrine under the Kansas constitution. That decision did not deal directly with the fund-cutoff measure, but the judge, realizing that his ruling would trigger that cutoff, put it on hold so that an appeal could be pursued with court funding still intact, at least temporarily.

Four state judges then filed a new lawsuit, directly contesting the validity of the fund cutoff as a separate violation of the state constitution. They claimed that the measure violates the state judges’ right under the state constitution to make rulings without being intimidated by the legislature, and also violates their right to due process. That new lawsuit remains pending in the state court, while the judge-selection issue moves up to the state Supreme Court.

There is no doubt, of course, that state legislatures do have the power, under their state constitutions, to pass budget legislation. But Kansas’s constitution—and it is typical in this respect—does require that the legislature provide continued funding to operate the state court system. But, when the legislature uses its budget powers in a way that definitely seems to be controlling how judges rule on legal questions, that stirs up the separation-of-powers controversy to a pitched level.

The drama in Kansas has now mushroomed into a fundamental test of the nature of state government, at least when two of the branches are so at odds that a constitutional crisis develops. The institutions of Kansas government will have to work this out, because there seems no way for either side to turn to the national government for support—even though the guarantee of a republican form of government remains in the Constitution and thus is still a reminder that America as a whole is not indifferent to what happens in Kansas, or any other state where the republican ideal comes under siege.

Lyle Denniston, the National Constitution Center’s constitutional literary adviser, examines the coming Supreme Court appeal in the political corruption case of Virginia’s former governor.

THE STATEMENT AT ISSUE:

“Gov. McDonnell’s petition [seeking Supreme Court review] will raise substantial questions, including about the outer boundaries of ‘official action’ under the federal corruption laws. Specifically, whether it could be criminal to engage in a quid pro quo exchange in which the official agrees merely to arrange a meeting, ask a question, or attend an event—even if the official does not agree to exercise, or urge others to exercise, any actual governmental powers. … [The decision of the appeals court] has clear implications for constitutional values like federalism, due process, and First Amendment rights.”

– Excerpt from a legal filing on August 13 by lawyers for former Virginia Governor Robert F. McDonnell, informing the U.S. Court of Appeals for the Fourth Circuit that they will be challenging his political corruption conviction in the Supreme Court in coming weeks. McDonnell was convicted of 11 corruption counts and has been sentenced to two years in prison. He is seeking to remain free until the Supreme Court acts on his planned appeal.

WE CHECKED THE CONSTITUTION, AND…

From their study of the ancient Roman Republic, the founders who wrote the American Constitution wanted to imitate some of its better aspects, and one of those was the idea of “civic virtue.” That is the notion that the people, in order to establish a political community capable of surviving and remaining stable, must have a kind of moral excellence about them—and so must their leaders.

The genius of a republican form of government, James Madison argued in the Federalist Papers, was that a selfless people could be trusted to choose virtuous leaders, but that the people’s government could be set up in such a way as to correct for leaders who failed to maintain that ideal. The founders had no illusion that the temptations of power would never corrupt some leaders.

Modern America, of course, is entirely familiar with the sad frequency with which scandals engulf the political class, and prosecutors for generations have been aggressively using existing fraud laws to go after government officials, high as well as low. Indeed, a President has been forced to resign over scandal, and another President has barely avoided being ousted because of scandal.

Without being widely noticed, however, the Supreme Court in recent years has shown an increasing skepticism about the sweep of prosecutors’ power to use fairly loosely worded federal anti-corruption laws to go after fraud in public life. For example, the Justices have demanded more explicit proof of wrongdoing when prosecutors make use of a long-time favorite weapon: a law that makes it a crime to fail to give the public “honest services.” In monitoring the use of federal laws to regulate campaign finance, the Justices have also narrowed the concept of corruption in politics, insisting that the only action that is illegal is actually buying influence with a would-be officeholder—paying in hopes of achieving some official action.

Those very developments have been in the background as federal prosecutors pursued an extremely high-profile case against a politician who at one time was widely regarded as having a very bright future in national Republican politics—the ex-governor of Virginia, Robert F. McDonnell. And now that prosecutors have won a guilty verdict against McDonnell, a verdict that has now been upheld by a federal appeals court, the case is on its way to the Supreme Court.

When McDonnell’s lawyers actually file their appeal to the Justices, they will seek to turn it into a major constitutional cause, and not just a case focused on what kinds of acts or actions by an officeholder can be used to justify a charge of fraud or bribery.

The core of the prosecution case against the former governor was that he took money and goods and other lavish favors from a businessman who was trying to get state government to help him as he promoted a supplement, made from tobacco leaves, that was to be used for treating some medical ailments.

The relationship that developed, prosecutors charged, violated both the federal anti-fraud law that focuses on failure to provide “honest services” while in office, and the federal extortion law. Both of those have been interpreted by the Supreme Court as, basically, laws against bribery.

Under both laws, prosecutors must prove beyond a reasonable doubt that the officeholder accepted something of value in return for taking an “official act” or “official action.” During McDonnell’s trial, his defense lawyers sought repeatedly—and unsuccessfully—to have those phrases interpreted to mean that McDonnell would have had to do something very specific, in using the duties of his office or state agencies, to advance the business interests of his friend, in return for all of those expensive favors.

What McDonnell actually did, his lawyers insisted, was nothing more than engaging in “everyday politics,” the kind of constituent contacts that every elected official is expected to, and does, have—especially a state governor seeking to bring business to the state. Unless the officeholder actually produced a government result for that constituent—actually pulled the levers of official power—and money or favors were exchanged for that, there could be no guilt, his attorneys contended.

But as the attorneys are preparing their case for the Supreme Court appeal, they are developing significant constitutional arguments around that basic claim. They are arguing that the governor’s due process rights were violated because he could have had no idea that what he was doing would be treated as criminal; that the First Amendment right to petition one’s government for action was scuttled; and that the Constitution’s protection of the federalist system, with its respect for states’ rights, was cast aside by prosecutors seeking to make a federal case out of conduct that did not violate state law in any way.

The legal defense team has some reason for optimism that the Supreme Court will take an interest, given what it has done in crafting some limits on public corruption prosecutions. And recasting his case as a major constitutional fight may also enhance the appeal, inviting the Justices to go beyond simply analyzing what the words in the fraud laws mean.

]]>http://blog.constitutioncenter.org/2015/08/constitution-check-do-federal-corruption-laws-sweep-too-broadly/feed/0Podcast: Which branch controls foreign affairs? Supreme Court rules in Zivotofskyhttp://blog.constitutioncenter.org/2015/06/podcast-which-branch-controls-foreign-affairs-supreme-court-rules-in-zivotofsky/
http://blog.constitutioncenter.org/2015/06/podcast-which-branch-controls-foreign-affairs-supreme-court-rules-in-zivotofsky/#respondThu, 11 Jun 2015 10:00:51 +0000http://blog.constitutioncenter.org/?p=38908This week, we continue our series of blockbuster podcasts that review the week’s big decisions at the Supreme Court, as well as preview other cases to be decided this month.

]]>http://blog.constitutioncenter.org/2015/06/podcast-which-branch-controls-foreign-affairs-supreme-court-rules-in-zivotofsky/feed/0Obama calls for war authorization, reopening constitutional debateshttp://blog.constitutioncenter.org/2015/02/obama-calls-for-war-authorization-reopening-constitutional-debates/
http://blog.constitutioncenter.org/2015/02/obama-calls-for-war-authorization-reopening-constitutional-debates/#respondFri, 13 Feb 2015 19:21:20 +0000http://blog.constitutioncenter.org/?p=37421On Wednesday, President Obama sent a request to Congress to authorize military force against ISIS, seeking formal authority for actions that have been taking place since August 2014.

In his 2015 State of the Union address, Obama maintained that he already has the authority to use force, but that formal approval from Congress would present a united front to the rest of the world. Whether this authority exists and whether these actions are constitutional is, however, up for debate, and is shaping the way the President’s request has been received in Congress.

Article II of the Constitution states that “the President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states,” yet it leaves how much power the President has in this role in question.

In 1973, Congress clarified this debate somewhat with the War Powers Act, which requires the President to report to Congress within 48 hours of the use of military force into hostilities, and to end this use within 60 days in the absence of permission from Congress.

The War Powers Act has been given varying levels of respect in the decades since its inception.

In August 2014, when Obama ordered airstrikes against ISIS, he was presumably acting under the two Authorizations for Use of Military Force (AUMF) passed after the attacks on 9/11 in 2001 and 2002 that permitted the use of military force in Iraq. The President’s new proposal would end the 2002 AUMF but leave the 2001 authorization in effect.

The resolution also includes various limits on the power Obama could exercise against ISIL. The request would limit the campaign to three years, and does not authorize “enduring offensive ground combat operations.”

These limitations have led to conflicting responses on Capitol Hill. Republican leaders, for example, have criticized the resolution for unduly tying the President’s hands.

“Any authorization for the use of military force must give our military commanders the flexibility and authorities they need to succeed and protect our people,” said House Speaker John Boehner. “I have concerns that the President’s request does not meet this standard.”

Senator John McCain also advocated for more presidential power, saying, “The fact is we need to understand the president is the commander-in-chief, and that role I do not believe should be impinged on by Congress.”

Congressional Democrats have conversely argued for further limitations. House Democratic Leader Nancy Pelosi urged against the expansion of presidential power, saying, “We hope to have bipartisan support for something that would limit the power of the President, but nonetheless protect the American people in a very strong way.”

As currently written, the resolution grants Obama the power to extend the fight against ISIL beyond Iraq and Syria, giving him the authority to strike “associated persons or forces.”

That clause could cover people and groups in a wealth of different countries, calling into question how the War Powers Act can function in a world where wars are being fought against amorphous terrorist groups rather than countries with distinct borders.

Further in question is whether these transgressions from the War Powers Act conflict with a key constitutional principle: the separation of powers. While Congress continues to hold the purse strings, many people have voiced concerns about the growing power of the executive in recent years.

Laura Beltz is an intern at the National Constitution Center. She is also a second-year student at the University of Pennsylvania Law School.

]]>http://blog.constitutioncenter.org/2015/02/obama-calls-for-war-authorization-reopening-constitutional-debates/feed/0President Obama asks Congress to approve war against ISILhttp://blog.constitutioncenter.org/2015/02/president-obama-asks-congress-to-approve-war-against-isil/
http://blog.constitutioncenter.org/2015/02/president-obama-asks-congress-to-approve-war-against-isil/#respondWed, 11 Feb 2015 17:46:18 +0000http://blog.constitutioncenter.org/?p=37339On Wednesday, the White House presented to Congress a new Authorization for the Use of Military Force against the Islamic State.

The new proposal says “the President is authorized … to use the Armed Forces of the United States as the President determines to be necessary and appropriate against ISIL or associated persons or forces.” By including “associated” groups, the President would have flexibility to fight future groups that take up the ISIL name and mandate.

It goes on to say “the authority granted … does not authorize the use of the United States Armed Forces in enduring offensive ground combat operations.” That clause still permits President Obama to deploy troops in more limited roles, such as advisers or special operations forces. The proposal also contains exemptions for troops currently deployed.

The new proposal also includes an expiration date—reauthorization will be required three years after enactment—and a repeal of the 2002 AUMF in Iraq, which has been the source of much controversy. However, the 2001 AUMF against terrorist groups remains in place.

The Obama administration has long been criticized for flouting the War Powers Act, which requires congressional approval of military action within 60 days of initiation. For more on the War Powers Act, read our briefing. Many legal experts have addressed this issue. And we remember the last time Congress actually used its power to declare war.

For a deeper dive on presidential war powers and the fight against ISIL, listen to our podcast with Ilya Somin of George Mason University and John Yoo of the University of California, Berkeley. Robert Turner of the University of Virginia explored the President’s options in a two–part series.

Other smart commentary comes from Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, who examined the war against ISIL in Syria. And Chris Edelson of American University made a forceful case for congressional engagement.

For the President and his supporters, it was an “unexpectedly good week.” On three high-profile issues—net neutrality, climate change and immigration—Barack Obama came out swinging. Has he crossed the constitutional line?

In recent years, Republicans have answered resoundingly in the affirmative. “Congress makes the laws; the president executes them,” said House Speaker John Boehner in July, explaining in USA Today the chamber’s pending lawsuit against the President over a delay of the Affordable Care Act’s employer mandate.

“That is the system the Founders gave us. This is not about executive orders. Every president issues executive orders. Most of them, though, do so within the law.”

Since the Speaker’s op-ed was published, that lawsuit has sputtered to a standstill. What’s more, Constitution Daily reported that President Obama has issued the fewest executive orders per year since President Grover Cleveland’s first time in office.

Still, accusations of an “imperial presidency” have continued, and the recent flurry of White House activity is rejuvenating the debate. Can the President really change policy in many different areas all at once?

As it turns out, while the relevant questions of politics and policy may be complicated, the constitutional consequences are less so. Let’s look at each issue in turn.

Net neutrality. Last Monday, the President came out in favor of regulating internet service providers like Verizon and Comcast as public utilities akin to telephone service rather than private information companies.

“For almost a century, our law has recognized that companies who connect you to the world have special obligations not to exploit the monopoly they enjoy over access into and out of your home or business,” Obama said in a video statement. “It is common sense that the same philosophy should guide any service that is based on the transmission of information—whether a phone call or a packet of data.”

Much as he might like to act, however, the President’s role here is essentially a political one. The Federal Communications Commission—an independent federal agency whose budget and appointments are overseen by Congress—retains full control of the rules governing the telecommunications industry.

So it falls to the five-member commission, chaired by longtime Obama supporter and former telecom lobbyist Tom Wheeler, to determine whether to take up the President’s call to reclassify ISPs under Title II of the Communications Act of 1934. While the President’s ability to exert political pressure is not trivial, it does not violate the Constitution.

Climate change. On Wednesday, while attending a meeting of the Asia-Pacific Economic Cooperation in Beijing, the President and Chinese Prime Minister Xi Jinping announced a joint agreement to reduce carbon emissions.

As part of the agreement, the United States has promised to double its current pace of carbon reduction with a 26-28 percent reduction from 2005 levels. For its part, China has agreed to keep its emission levels from growing after 2030, with an added promise of making renewable energy sources 20 percent of the nation’s energy production by that time.

Obama has already drawn enormous fire from Republicans for making the agreement. But most criticism has sprung out of economic concerns, not for an overstepping of constitutional authority.

Indeed, the understanding is that the President will turn to the Environmental Protection Agency and preexisting statutory authority to reach the new carbon goals. The Supreme Court ruled on the limits on the EPA’s authority in June, but it mostly deferred to the agency, suggesting the President will be on solid constitutional ground moving forward.

Immigration. On Friday, the New York Times reported that the President intends to announce a plan to overhaul the nation’s immigration system by the end of the year, reengaging a fight that has inspired the most opposition to his presidency.

The administration is expected to defer or erase the deportation of up to five million unauthorized immigrants, including the parents of American citizens or legal residents and residents who were brought to the country as children. Other changes may include dialing back use of the controversial “Secure Communities” program and establishing new guidelines for border law enforcement.

Since Election Day, Republicans have made clear that they will not tolerate executive action from the President on immigration. Boehner said his party would “fight the President tooth and nail,” including a possible lawsuit, and Senator Mike Lee said that “it’s very important for us to do what we can to prevent” unilateral reform.

But as Constitution Daily reported in July, when rumors of impending action on immigration were fluttering through the media, Republicans will have little to no legal recourse if any action does occur. Plus, the President retains “prosecutorial discretion” to decide when and how certain laws are enforced.